Canadian Constitutional Law Section A March 9 2013

Canadian Constitutional Law Section A; March 9, 2013 (supplemental) Judicial Decisions on the Charter of Rights Course Director: Ian Greene

Aboriginal Issues and Federalism • Monahan, Constitutional Law, Ch 14, 439 -460 – Royal Proclamation of 1763: aboriginal lands recognized and lands for settlers would need to be purchased by British government. (One of the grievances of the 13 colonies that rebelled a few years later) – Treaties were signed with some native bands. However, the treaties were often treated by courts as “international law, ” not recognized by courts unless enacted into domestic (federal or provincial) law. Thus, many treaty rights were abrogated or ignored. – 1973 in Calder case: SCC for the first time recognized some aboriginal rights at least to the use of traditional lands where treaties had not been signed. – Marshall case (1999): SCC accepted evidence of the aboriginal understanding of a treaty, rather than relying simply on the official British/Canadian interpretation. – 91(24): federal jurisdiction over “Indians, and lands reserved for the Indians. ” – Provincial legislation applies on Indian reserves unless federal legislation supersedes it. This includes health, education, and social welfare legislation, unless there is a federal substitute.

Monahan Ch 14 (460 -475) 35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed. (2) In this Act, “aboriginal peoples of Canada” includes the Indian, Inuit and Métis peoples of Canada. (3) For greater certainty, in subsection (1) “treaty rights” includes rights that now exist by way of land claims agreements or may be so acquired. (4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons. 35. 1 [added 1983] The government of Canada and the provincial governments are committed to the principle that, before any amendment is made to Class 24 of section 91 of the “Constitution Act, 1867”, to section 25 of this Act or to this Part, (a) a constitutional conference that includes in its agenda an item relating to the proposed amendment, composed of the Prime Minister of Canada and the first ministers of the provinces, will be convened by the Prime Minister of Canada; and (b) the Prime Minister of Canada will invite representatives of the aboriginal peoples of Canada to participate in the discussions on that item.

Aboriginal Rights • Sparrow (from Sparrow 1990) test for application of 35(1) 1. Claimant demonstrates acting further to a S. 35 right as defined in a treaty, or by the Van der Peet (1996) test: What activity was the claimant engaged in (eg. selling, hunting, logging)? To what extent is this activity “integral to the distinctive culture” of pre-contact Aboriginals and has it been continuous? Evidence from Aboriginal sources (eg. oral) can be considered. 2. Is the right claimed an “existing” right in 1982 or has it been extinguished? To be extinguished, there must be “clear and plain” evidence. 3. Is there a prima facie infringement of the right, i. e. are there significant consequences for Aboriginal people? 4. Can the infringement be justified? a) b) Is there a “compelling and substantial” objective for the infringement? Does the infringement unduly restrict the Aboriginal right in question, or can it be justified by the Crown’s “fiduciary” duty which requires that priority be given to Aboriginal claims when challenged by claims of other groups? -Right to self-government: to some degree this right exists -Duty of federal and provincial crowns to negotiate land claims in good faith

Big M Drug Mart (freedom of religion, 1985) • Impugned: Lord’s Day Act – Calgary drug store challenges Act as violation of S. 2 • Does Charter apply to corporations? • “everyone” in S. 2 (fund freedoms) and “anyone” in S. 24 (remedies) includes legal persons • Bill of Rights precedents – Does Robertson & Rosetanni apply? – Dickson: Charter doesn’t simply “recognize and declare” existing rights. Applies to present & future legislation – Do we look only at effect of impugned legislation, as in Robertson & Rosetanni? – No: purpose equally important. Purpose is clearly to promote particular religious observances (from 1677) • Purpose of Charter: tolerance, freedom, equality. – Freedom is founded on “respect for the inherent dignity and the inviolable rights of the human person. ” – “Purposive” approach to application of Charter

Big M (2) • Freedom of Religion – What is purpose of freedom of religion? • History: forcing religious belief does not work • Christians realized that their religion demands tolerance. Everyone given a conscience by God; to compel belief therefore dishonours God • rel minorities need protection from tyranny of the majority • Preamble to Charter: “Canada is founded upon principles that recognize the supremacy of God and the rule of law. ” • Act therefore violates s. 2. Can it be saved by s. 1? – Crown arguments: • need a day of rest conforming with needs of majority. – Dickson: No; Charter is to protect religious minorities • society needs a weekly day of rest so families can spend time together. – Dickson: good argument, but that’s a provincial responsibility. LDA was a federal law under criminal power. Now only provinces can regulate.

Oakes (1986) • Impugned: reverse onus clause in fed Narcotic Control Act. • In a free & democratic society, the gov’t objective must be of sufficient importance to justify limiting a right. – If found guilty of possession of a narcotic, presumed guilty of trafficking unless accused can prove otherwise. Claim of Oakes: violates s. 11(d) presumption of innocence. – Oakes: found guilty of • possession of 8 one-gram vials of hash oil in 1981. Challenged trafficking charge. – Does reverse onus violate s. 11(d)? Yes. Saved by S. 1? – What is objective of reverse onus clause? – Dickson: Curb drug trafficking. This is of sufficient importance. Rational connection between objective, and means used?

Oakes (2) – Dickson: no. Possession of a small amount of a narcotic does not necessarily mean trafficking is involved. This isn’t a rational way to get at the traffickers. – Because the impugned legislation has failed the first prong of the second part of the test, it’s not necessary to consider the other 2 prongs of Part II. • Other two prongs of Part II of the Oakes test: – the right that is limited should be impaired as little as necessary to meet the government objective – there must be an overall balance between the harm done by limiting the right, and the good achieved by meeting the legislative objective. The cure can’t be worse than the disease.

Morgentaler (1988) • Issue: does abortion section of Crim Code (251) violate s. 7? • 5 to 2: yes, but 3 different opinions: – Dickson, Lamer: 251 violates sec of person; inadequate procedural safeguards. No Dn of “health. ” S 1 Obj: “life and health” of preg women. Fails rational connection test. – Beetz, Estey: Violates sec of person; hosp requirement unnecessary; committee too restrictive. “Health” Dn not a problem. S 1 Obj: “protection of fetus. ” Fails rational connection test. – Wilson: Violates sec of person, and defects substantive. Also, violates “liberty. ” No fundamental justice. S. 1 Obj: protect fetus. Can’t limit fr of conscience during first trimester. • Mc. Intyre: defer to Parliament (Le. Dain agrees).

Ford & Devine cases • 1977: Bill 101, Charter of the French Language. – Prohibited English on most commercial signs to encourage immigrants to assimilate with the francophone culture. • Quebec Charter of Human Rights (1975) – guarantees freedom of expression – Contains a limitations clause like s. 1 of Charter • PQ: Blanket override of existing legislation enacted in 1982 • 1984: Ford & Brown claimed right to post bilingual outdoor signs • 1978: Devine & Singer displayed signs in English only & convicted under B 101

1988 SCC decision: Ford • Is blanket override under s 33 constitutional? – SCC: procedural only – part of 101 subject to Can Charter; override expired. 1984 amendment: subject only to Quebec Charter as 5 year override still valid. • Freedom of expression – Does it apply to ideas only, or language of expression too? – Commercial expression too? • Does 101 violate Fr of Exp in Canadian & Quebec Charters? Yes • Can the violation be justified by s. 1 etc. ? – Sociolinguistic studies – Substantial importance of preserving Fr culture: yes – rational connection yes – Limit rights as little as necessary: no. Studies conclude bilingual signs work if French predominates.

Devine & After • Devine: – Following Ford, Devine must use bilingual signs – 101 violates fed criminal law power? No: 92(13) – Guarantee of equality in Quebec Charter of Rights violated? Yes, but bilingual requirements are a reasonable limit • Bourassa could have amended 101 to allow for bilingual signs, French predominating – instead, used S. 33 to re-enact French-only signs law – over next 5 years, debate in Quebec concluded SCC was right. Even the PQ government did not re-enact the override. This is how S. 33 is supposed to work.

Keegstra (1990) • Keegstra was a high school teacher in Eckville, AB. Taught stuedents anti-Semitic theories. • charged with violating s. 319(2) of the Criminal Code -- “wilfully promoting hatred against an identifiable group by communicating anti-semitic statements to his students. ” • convicted at trial • AB Ct of Appeal: s. 319(2) violates S. 2 of Charter • SCC: The violation of S. 2 can be justified under s. 1 of the Charter. • 4 -3 decision: Majority is CJ Dickson, Wilson, L'Heureux-Dubé and Gonthier; minority is La Forest, Sopinka and Mc. Lachlin JJ. • Majority decision: – Section 2(b) should be given a “large and liberal” interpretation, and so it covers even hate speech. – Oakes test: • I) Substantial importance test: gov’t objective: prevent harm caused by hate propaganda, is of sufficient importance

Keegstra (2) • Part II: Proportionality test – a) rational connection: yes. Prohibiting hate propaganda prevents harm resulting from it. (historical examples) – b) fr of exp limited as little as necessary? Yes: only “most severe” forms of hatred covered. Private communications not covered. There’s a defence of “truth, ” if accused can prove on bal of probabilities. Promotion must be willful, so mens rea protected. – c) good outweighs harm. Hate propaganda does not contribute to self-development, quest for truth, participative democracy. • Dissent: – K’s communications offensive, but not threats. Not violent, didn’t advocate violence. Difficult to draw line between hate speech, and valid criticism. Speech that advocates changing the basic conceptions about our society must be protected.

Keegstra (3) • Oakes Test: – Gov’t objective is of sufficient importance. – Part II: (proportionality) • a) rational connection: not necessarily. Hate might just go underground, or be disguised to fit the law. Prosecution might create sympathy. Publicizing the case might have the opposite of effect intended. Valuable speech might be inadvertently supressed. – b) S. 319(2) is overbroad. Dn of “hate” is too subjective. True statements about a group might result in hate. – c) Harm outweights good. Might have a “chilling effect. ” It prevents free and open debate. No proof that S. 319(2) promotes social harmony & indiv dignity. • Reverse onus issue: – can’t be convicted if you prove statements are true. Maj: violates presumption of innocence, but passes Oakes test for same reason as the rest of 319(2) does.

RJR-Mac. Donald (1995) • 1988 federal Tobacco Products Control Act of Mulroney government challenged by tobacco companies; got to Supreme Court in 1994 • Five-four decision in 1995 struck down key parts of the legislation. • Majority decision of Mc. Lachlin: – Purpose of Act: “to prevent people in Canada from being persuaded by advertising and promotion to use tobacco products, ” and “to discourage people who see the package from tobacco use. ” – Sufficienty important to justify infringing Freedom of Expression – No rational connection between objectives and means used; no social science evidence justifying such drastic means. – Legislation does not limit Fr of Exp as little as necessary • Concurring decision by Iacobucci: – The legislation passes the rational connection test, but not the minimal impairment test. To pass this test, revise legislation to prohibit “lifestyle” advertising & advertising directed at adolescents. • Dissenting opinion of La Forest: – Purpose of Act is “to prevent people in Canada from being persuaded by advertising and promotion to use tobacco products, ” and “to discourage people who see the package from tobacco use. ” – The Act is sufficiently important to infringe rights, and given the definition of purpose, passes all three parts of Part II of the proportionality test. – Emphasizes importance of deferring to Parliament regarding complex policy choices

Impact of RJR Macdonald • Chrétien government had Parliament enact the Tobacco Act in 1997, which permitted “information and brand-preference advertising, while forbidding lifestyle advertising and promotion, advertising appealing to young persons, and false or misleading advertising or promotion. ” The new legislation also increased the amount of space that would need to be taken up on packaging for health warnings was increased from 33 percent to 50 percent. The revised legislation was upheld by the Supreme Court in 2007. The Court referred to the Hogg-Bushell “dialogue” theory. • Janet Hiebert is critical of Parliament for implementing the majority’s prescription for creating legislation relating to tobacco advertising that would comply with the Charter. See Charter Conflicts: What is Parliament’s Role? (Mc. Gill-Queen’s Univ Press, 2002) • See also Ian Greene’s more extensive notes on RJR Macdonald, linked to the class web page.

RJR-Mac. Donald (1995) • 1988 federal Tobacco Products Control Act of Mulroney government challenged by tobacco companies; got to Supreme Court in 1994 • Five-four decision in 1995 struck down key parts of the legislation. • Majority decision of Mc. Lachlin: – Purpose of Act: “to prevent people in Canada from being persuaded by advertising and promotion to use tobacco products, ” and “to discourage people who see the package from tobacco use. ” – Sufficienty important to justify infringing Freedom of Expression – No rational connection between objectives and means used; no social science evidence justifying such drastic means. – Legislation does not limit Fr of Exp as little as necessary • Concurring decision by Iacobucci: – The legislation passes the rational connection test, but not the minimal impairment test. To pass this test, revise legislation to prohibit “lifestyle” advertising & advertising directed at adolescents. • Dissenting opinion of La Forest: – Purpose of Act is “to prevent people in Canada from being persuaded by advertising and promotion to use tobacco products, ” and “to discourage people who see the package from tobacco use. ” – The Act is sufficiently important to infringe rights, and given the definition of purpose, passes all three parts of Part II of the proportionality test. – Emphasizes importance of deferring to Parliament regarding complex policy choices

Impact of RJR Macdonald • Chrétien government had Parliament enact the Tobacco Act in 1997, which permitted “information and brand-preference advertising, while forbidding lifestyle advertising and promotion, advertising appealing to young persons, and false or misleading advertising or promotion. ” The new legislation also increased the amount of space that would need to be taken up on packaging for health warnings was increased from 33 percent to 50 percent. The revised legislation was upheld by the Supreme Court in 2007. The Court referred to the Hogg-Bushell “dialogue” theory. • Janet Hiebert is critical of Parliament for implementing the majority’s prescription for creating legislation relating to tobacco advertising that would comply with the Charter. See Charter Conflicts: What is Parliament’s Role? (Mc. Gill-Queen’s Univ Press, 2002) • See also Ian Greene’s more extensive notes on RJR Macdonald, linked to the class web page.

• • Sauvé v. Canada (prisoners voting rights, 2002) Sauvé had been convicted of murder. Believes he was wrongfully convicted. Took university courses in prison and learned about the Charter. S. 3 of Charter states “every citizen” can vote. He challenged the prison’s refusal to allow him to vote and won at SCC in 1993. At that time there was a blanket disqualification preventing any prisoner from voting in a federal election. Supreme Court held that the blanket disqualification failed Part II of Oakes test. Parliament amended the law to allow prisoners serving less than 2 years to vote. Sauvé challenged the new law, which led to 2002 decision Mc. Laughlin + 4: new law failed Part II of Oakes test. Strike down. Gonthier + 3: Oakes test Part II is met. Uphold legislation. Mc. Laughlin: gov’t claims objectives are to “enhance civic responsibility and respect for rule of law, ” & “to enhance the general purposes of the criminal sanction. ” Part I: reluctantly agrees is passed though gov’t “failed to identify particular problems” that justify denying the right to vote. Part II: no rational connection: denying right to vote does not enhance civic responsibility; just the opposite. Law does not minimally impair; does more harm than good.

Sauvé (2) • Gonthier + 3: defines objective same as Mc. Lachlin • Part I of Oakes: met • Part II: – Rational connection: there does not need to be empirical evidence. Prisoners have shown disrespect for civil responsibility and the rule of law, and therefore don’t deserve to vote. – Minimal impairment: gov’t doesn’t have to prove the least possible minimal impairment. Allowing prisoners serving less that 2 years to vote is a reasonable minimal impairment. – Disqualification from voting does more good than harm • What is fascinating about this case is the social science evidence. The evidence for Sauvé focuses on connection between voting and rehabilitation. Evid for gov’t from esteemed academics that had little to do with legal issues of interest to the majority

Chaoulli v. Quebec (AG), (right to adequate health care, 2005): • • • George Zeliotis (long waits for heart and hip surgery) and Jacques Chaoulli (Montreal doctor who wanted to run a priv hospital) challenged Quebec’s prohibition of private medical insurance for services covered under public plan as a violation of S. 7 of Canadian Charter (life & security of person), and “inviolability of the person” section of Quebec Charter, because of long delays. Seven judges on panel. Four, led by Deschamps, decided that the prohibition of private medical insurance violated the Quebec Charter. Three (not including Deschamps) also decided that the prohibition violated s. 7 of the Canadian Charter, and cannot be justified under S. 1. Three judges, led by Binnie, agreed that sometimes there is a chance of putting at risk life or security of the person. However, the prohibition of private health insurance is not arbitrary; there are good reasons for it. Therefore, there is no legal violation of S. 7. Quebec gov’t reaction: allow private health insurance for cataract surgery and knee & hip replacements, but limit expansion of private care. No impact on the rest of Canada at the moment. But will new judicial appointments make a difference in future similar cases?

Health Services and Support (SCC overrules a previous decision and expands labour rights, 2007) • • Rare case in which precedent is overruled: Alberta Labour Ref (1987), which decided that S. 2(d) of Charter did not protect a right to strike. Impugned: 2002 BC Health and Social Services Delivery Improvement Act, which allowed health employers to contract out of collective agreements All seven judges agreed that the decision of the majority in Alberta Labour Reference should be overruled; the seventh would have struck down fewer sections of the 2002 Act than the other six. “We conclude that s. 2(d) … protects the capacity of members of labour unions to engage, in association, in collective bargaining on fundamental workplace issues. … This protection does not cover all aspects of “collective bargaining”…. What is protected is simply the right of employees to associate in a process of collective action to achieve workplace goals. If the government substantially interferes with that right, it violated s. 2(d) of the Charter…. ” Purpose of Act: to enhance the ability of health employers … to respond quickly and effectively to changing circumstances” Part I of Oakes test passed Part II: rational connection, yes. Minimal impairment: no.

Delgamuukw v. BC (aboriginal title or land claims rights, 1997) Facts: The Appellants (Delgamuukw) are a group of Aboriginal hereditary chiefs who claimed ownership to separate portions of 58, 000 square kilometers in British Columbia. The Respondent (Crown of British Columbia) argued that the Appellants did not have an interest or right to claim title to the land. After rejecting the Appellant’s oral evidence (“adaawk”), the trial judge found the Appellants had failed to meet the necessary burden of proof to establish their claim and therefore dismissed it. Issue: Does Aboriginal Title exist under s. 35(1) of the Constitution Act, 1982, and if so, what is required to prove Aboriginal Title and what is its nature/content? 24

Aboriginal Title Rights Decision: Judgment for the Appellant, (6 -0), the appeal was allowed and the matter was sent back to trial for a re-determination of whether the claimants had established the existence Aboriginal Title. Ratio: Five ratios are important to note about this case. They are: 1) Aboriginal Title Is Protected By s. 35(1) of the Constitution Act, 1982: s. 35(1) is broad enough to include Aboriginal Title as an Aboriginal right (i. e. it is possible to make a claim under s. 35(1) for Aboriginal Title). 2) rules of Courts Must Be Flexible In Interpreting Evidentiary Requirements: Given the evidentiary hurdles Aboriginals encounter as a result of their reliance on oral traditions, courts must be flexible in their interpretation of the evidence. 25

Aboriginal Title Rights 3) Establishing Aboriginal Title: To establish the existence of Aboriginal Title, the claimant must demonstrate (i. e. has the burden to prove): A) B) C) D) Prove existing occupation at time Crown asserted sovereignty. The occupation of the land was exclusive or in joint title with another Aboriginal group if shared occupation was exclusive. Occupation was central to distinctive culture. Present occupation of land is sufficient if claimant can demonstrate a continuity with the land dating back to pre-sovereignty occupation. 26

Aboriginal Title Rights 4) Nature and Content of Aboriginal Title: Aboriginal Title includes the following: A) B) C) D) Right to exclusive occupation and use of the land (both surface and subsurface rights) that is not limited to traditional uses such as hunting and fishing. Aboriginal Title is communal in nature. Aboriginal Title cannot be alienated (sold) to private purchasers. It must be surrendered to the Crown. Aboriginal Title does not allow Aboriginals to use the land in a way that is inconsistent with the uses that were relied upon to establish that title. 27

Aboriginal Title Rights 5) Sparrow Test Applies To Justify Infringement: To determine whether an infringement of Aboriginal Title is justifiable, the courts apply the Sparrow justificatory test with the following modifications: A) B) C) Aboriginal Title rights do not necessarily have to be given priority. Federal Government can consider economic and regional fairness concerns. Federal Government can consider historical reliance on land by others. Note: A debate still exists as to whether provincial governments can infringe Aboriginal Title since it directly affects Aboriginal rights (and the province cannot enact legislation dealing directly with Aboriginal rights). 28

Aboriginal Treaty Rights R. v. Marshall, [1999] 3 S. C. R. 456. Facts: The Appellant accused (Marshall), a Mi’kmaq Indian, was charged and convicted of selling eels without a license, fishing without a license and fishing during the close season with illegal nets in violation of the Maritime Provincial Fishery Regulations. The Appellant argued that the Regulations were inapplicable since he was exercising a treaty right to sell fish under the “Truckhouse Provision” of the Mi’kmaq treaties of 1760 -61. The Respondent (Crown) argued that the treaties did not include a right to sell fish commercially and/or the right had since been extinguished. Issue: Does the “Truckhouse Provision” in the Mi’kmaq treaties of 176061 include the right to commercially fish for sustenance? 29

Aboriginal Treaty Rights Decision: Judgment for the Appellant (5 -2) the appeal is allowed (i. e. he was acquitted) and the “Truckhouse Provision” in the Mi’kmaq treaties of 1760 -1761 include the commercial right to fish for sustenance (i. e. obtain the necessities of life). Ratio: Four ratios are important to note about this case. They are: 1) Honour of the Crown Is At Stake When Dealing With Treaties: Since the honour of the Crown is at stake when dealing with treaty rights, the Crown will not be permitted to deal sharply with Aboriginals. 2) Interpreting a Treaty: When interpreting the terms of an Aboriginal treaty, the court will adopt the following approach: 30

Aboriginal Treaty Rights A) B) C) D) E) Terms of the treaty are to be liberally construed in favour of the Aboriginal claimant. Ambiguities in the terms of the treaty are to be interpreted in favour of the Aboriginal claimant. Treaties must be interpreted according to the mutual understanding of both the Crown and Aboriginals. Treaties must be interpreted in a flexible manner and therefore allowed to “grow” (i. e. include an incidental right). Extrinsic evidence can be used to interpret a treaty (i. e. evidence beyond the terms of the treaty). 31

Aboriginal Treaty Rights F) G) Burden of proving termination of treaty on party making the claim. Burden of proving extinguishment of treaty right is on party making the claim. Note: Treaty rights cannot be extinguished after 1982 because of s. 35(1) of the Constitution Act, 1982. Further, the provincial governments never have had the right to extinguish treaty rights since that falls under federal jurisdiction under s. 91(24) of the Constitution Act, 1867. 3) Sparrow Test Applies To Justify Infringement: Aboriginal Treaty Rights are not absolute. To determine whether an infringement of an Aboriginal Treaty Right is justifiable, the courts apply the Sparrow justificatory test. 32

Aboriginal Treaty Rights 4) Treaty Rights Are Communal: Aboriginal treaty rights communal in nature, which means that the Aboriginal community has the authority to limit those rights. Dissent (Gonthier J. and Mc. Lachlin JJ. ): They agree with the majority on all points concerning the interpretation of a treaty, but they disagree on the actual findings of fact. According to dissent, the treaty right to bring fish to the truckhouse to commercially trade for sustenance “died” out in the 1780 s when the exclusive trade agreement between the British and the Mi’kmaq ended. This means that accused cannot rely on the treaty right as a defence to the charge. 33

Aboriginal Treaty Rights R. v. Marshall, [1999] 3 S. C. R. 533 [Motion for Rehearing]. Facts: The Applicant, an intervener in R. v. Marshall (West Nova Fishermen’s Coalition), applied for a rehearing of the appeal and, if granted, a stay of the Supreme Court’s previous judgment pending the rehearing. The Applicant also sought to have the Court address whether the limitations to the Mi’kmaq treaty rights in the Regulations could be justified for conservation purposes since the Crown had not addressed this question in R. v. Marshall. Issue: Should the Court grant the application for a rehearing? Decision: Judgment for the Respondent (7 -0), the application was dismissed. 34

Aboriginal Treaty Rights Ratio: Four ratios are important to note about this case. They are: 1) Court Has Authority to Entertain Motion For Rehearing: A motion for a rehearing will only be granted in exceptional circumstances. 2) Intervener Must Take Record As Defined By Parties: An intervener is limited to making submissions based on the record as submitted by the parties. Since the issue was about eels and not lobster and the Crown did not make submissions about whether the Regulations could be justified, the Intervener cannot raise those issues on its own motion. 35

Aboriginal Treaty Rights 3) 4) limit Previous Decision Does Not Mean Treaty Right Can Never Be Limited: The Crown can limit treaty rights if those limitations can be justified under the test laid out in Sparrow. The determination of whether a limitation is justifiable will depend on the context of the specific case (i. e. look at the resource, species, community and time involved in the case). Other Justificatory Reasons: The Crown can look to other justificatory reasons (outside of conservation) to Aboriginal Treaty Rights. These reasons include: A) B) Economic and/or regional fairness. Recognition of historical reliance on fishery by non-Aboriginals. 36

Québec Secession Reference (1998) • Stéphane Dion – Critical of “yes” side in 1995 referendum – Asked by PM to become Min of Intergovernmental Affairs in 1996 & context by-election – Proponent of “Plan B: ” fed gov’t should be active in opposing Québec separatism. • Guy Bertrand (a former sovereignist leader in Québec turned federalist) – began a litigation process in which challenged the Québec government’s attempts to institute sovereignty on Charter of Rights grounds. – Québec government tried to block Bertrand’s challenge, so fed gov’t continued the litigation through the reference (part of “Plan B”)

Québec Secession Reference (2) • Argued in Feb, 1998 – Québec gov’t wouldn’t participate, so SCC appointed André Joli-Cœur as amicus curiae. – Amicus argued that reference jurisdiction of SCC is ultra vires. • Can an appeal court be given original jurisdiction? Yes. • Can an appeal court advise? In Canada, yes (despite rule about no specific mention). • Justiciability: – Too theoretical? – Too political? – Not ripe? • Canada does not have as strict a separation of powers as U. S. • Advisory opinion different from a litigated case.

Québec Secession Reference (3) • Questions: – 1. Under Can Const, can Québec secede unilaterally, without a constitutional amendment? – 2. Under Int law, can Québec secede unilaterally? – 3. If conflict between (1) and (2), which takes precedence? • Why did SCC write such a lengthy judgment? • 1. Can Québec secede unilaterally under constitution? – Arguments in favour based on democracy. – What is democracy? – Our democracy is based on shared values, and unilateral secession puts these at risk. Thus, duty to negotiate. – Was SCC too activist, or not activist enough re “clear question” and “clear majority”?

Québec Secession Reference (4) • 2. Does international law give Québec the right to secede unilaterlally? – Amicus: right to selfdetermination belongs to all “peoples. ” – Do Québeckers constitute a “people”? – SCC: not necessary to decide, because even if yes, the right only exists where a “people” is mistreated. • right to only arises under international law where “a people” is governed as part of a colonial empire, “is subject to alien subjugation, domination or exploitation; and possibly where ‘a people’ is denied any meaningful exercise of its right to self-determination within the state of which it forms a part. ”

Québec Secession Reference (5) • Spring of 2000: Bill C-20: “An Act to give effect to the requirement for clarity…. ” – Within 30 days of a prov legislature tabling a referendum question, H. of C. must declare whether question is “clear. ” – If question considered “clear, ” and a majority votes in favour, H of C must determine whether majority is “clear. ” Consider: • • Size of majority Proportion voting Views of political parties View of Senate

Québec Secession Reference (6) • After SCC decision: PQ gov’t • Kenneth Mc. Roberts: The seemed to support decision. Trudeau strategy for Canadian unity has failed. • Jacques-Yvan Morin (former Québec intergovernmental • Hogg: affairs minister): SCC – Québec can no longer claim that it can secede unilaterally. decision means feds can’t – The “duty to negotiate” refuse to negotiate, but can secession in face of a “clear put up many obstacles to majority” vote in favour in a Quebec secession. province is unprecedented in world history.

Insite • On the last day of September, 2011, the Supreme Court of Canada released a unanimous judgment that condemned the Harper government’s refusal to allow the drug -injection site in Vancouver known as “Insite” to continue its operations. The Minister’s discretionary decisions, the Supreme Court ruled, must comply with the Charter of Rights and Freedoms.

Insite (2) • “Insite has been proven to save lives with no discernable negative impact on the public safety and health objectives of Canada. The effect of denying the services of Insite to the population it serves and the correlative increase in the risk of death and disease to injection drug users is grossly disproportionate to any benefit that Canada might derive from presenting a uniform stance on the possession of narcotics. ” (Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, headnotes). Such ministerial denial is a violation of s. 7 of the Charter, which protects the right to “life, liberty and security of the person. ”

Insite (3) • This decision is remarkable for a number of reasons: – it was written by a Chief Justice generally regarded as conservative – it included judges appointed by the Harper government – it was blunt in its critique of the government’s penchant to ignore the clear results of social science evidence. – extreme ideological positions that have a legal hook are likely to run afoul of Canadian courts for the reason that judges are experts in applying the rule of law.